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Cushman v. Shinseki

United States Court of Appeals for the Federal Circuit
576 F.3d 1290 (Fed. Cir. 2009)


Philip Cushman (plaintiff) was a Marine during the Vietnam War. In January 1970, the Marines honorably discharged Cushman after he sustained injuries to his spine. Cushman underwent four surgeries for his injuries. The Portland Outpatient Clinic (Outpatient Clinic) diagnosed Cushman with a postoperative ruptured intervertebral disc. The Outpatient Clinic’s last entry in Cushman’s medical record stated: “Is worse + must stop present type of work.” Cushman filed a request for total disability with the Department of Veterans Affairs (DVA) (defendant) based on his unemployability. The DVA denied his request. After two hearings and a number of appeals, Cushman discovered the medical record in the possession of the DVA Regional Office and Board was different from the medical record kept at the Outpatient Clinic. The version kept by the Regional Office and Board had been altered to read: “Is worse + must stop present type of work, or at least [ ] bend [ ] stoop lift.” The altered entry also noted Cushman was applying for reevaluation of his back condition. Cushman challenged two Board decisions denying him total disability benefits. Cushman argued the decisions contained clear and unmistakable error because they were based on altered medical records that understated his disability. The Board denied the appeal. Cushman ultimately appealed the determination to the United States Court of Appeals for the Federal Circuit, arguing the DVA denied him a full and fair hearing in violation of his due process rights due to the altered medical records.

Rule of Law


Holding and Reasoning (Prost, J.)

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